TIDMPHRM
RNS Number : 7895E
Phorm Corporation Limited
06 November 2015
NEITHER THIS ANNOUNCEMENT NOR ANY PART OF IT CONSTITUTES AN
OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY,
SUBSCRIBE OR ACQUIRE ANY NEW ORDINARY SHARES IN ANY JURISDICTION IN
WHICH ANY SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE
INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION
WOULD BE UNLAWFUL.
6 November 2015
Phorm Corporation Limited
("Phorm" or the "Company")
Equity fundraising of GBP2.1m (approximately US$3.2m) gross
Phorm (AIM: PHRM), a leading advertising-technology company and
first party data platform provider, is pleased to announce that it
has today raised, in aggregate, approximately GBP2.1 million
(approximately US$3.2 million) before expenses through a
conditional placement, via Mirabaud Securities LLP ("Mirabaud
Securities"), of 37,045,000 new ordinary shares of nil par value
each in the capital of the Company (the "Placing Shares") (the
"Placing") and a subscription for 22,374,000 new ordinary shares of
nil par value each in the capital of the Company (the "Subscription
Shares") (the "Subscription"), both at a price of 3.5 pence
(approximately 5.39 cents) per new ordinary share.
Phorm intends to use the net proceeds raised from the Placing
and Subscription for the group's general working capital
purposes.
The closing mid-market price of the Company's existing ordinary
shares on 5 November 2015 (being the latest practicable business
day prior to the date of this announcement) was 3.375 pence
(approximately 5.2 cents) per share.
The Placing Shares have been conditionally placed by Mirabaud
Securities, as agent of the Company, with certain existing and new
institutional and other investors pursuant to a placing agreement
(the "Placing Agreement"). Under the terms of the Placing
Agreement, Mirabaud Securities will receive commission from the
Company conditional on admission of the Placing Shares to trading
on the AIM market operated by the London Stock Exchange plc ("AIM")
and the Company will give customary warranties and undertakings to
Mirabaud Securities in relation, inter alia, to its business and
the performance of its duties. In addition, the Company has agreed
to indemnify Mirabaud Securities in relation to certain liabilities
that it may incur in undertaking the Placing. Mirabaud Securities
has the right to terminate the Placing Agreement in certain
circumstances prior to admission, in particular, in the event that
there has been, inter alia, a material breach of any of the
warranties. The Placing is not being underwritten.
The Subscription is conditional upon admission of the
Subscription Shares to trading on AIM. Following admission, the
Subscription Shares and the Placing Shares will represent, in
aggregate, approximately 6.05 per cent. of the Company's enlarged
issued ordinary share capital.
Application will be made to the London Stock Exchange plc for
the Subscription Shares and the Placing Shares to be admitted to
trading on AIM. It is expected that admission of the Subscription
Shares and the Placing Shares will become effective and that
dealings in the Subscription Shares and the Placing Shares will
commence at 8.00 a.m. on 10 November 2015.
Following completion of the Placing and the Subscription, the
total issued ordinary share capital of the Company will comprise
981,679,775 ordinary shares. The Placing Shares and Subscription
Shares will be fully paid and will rank pari passu in all respects
with the Company's existing ordinary shares.
Related party transactions
Pursuant to the abovementioned Placing, Viollette Company
Limited ("Viollette") and Meditor European Master Fund Limited
("Meditor") are investing GBP276,220 (approximately US$425,020) and
GBP415,940 (approximately US$640,007) respectively for 7,892,000
and 11,884,000 Placing Shares respectively. These subscriptions for
Placing Shares will result in Viollette and Meditor being
interested, in aggregate, in 218,886,286 Ordinary Shares and
233,556,251 Ordinary Shares respectively, representing
approximately 22.30 per cent. and 23.79 per cent. of the Company's
enlarged issued ordinary share capital on completion of the Placing
and Subscription.
In the event that Viollette and Meditor were to convert in full
their pre-existing holdings of GBP0.975 million (approximately
US$1.5 million) each of secured convertible loan notes originally
issued in April 2013 and formally extended in July 2015, and taking
into account their participations in the Placing, their
shareholdings in the Company would increase to approximately 24.37
per cent. and 25.86 per cent. respectively.
Solely by virtue of Viollette and Meditor currently being
substantial shareholders in the Company, Viollette and Meditor's
subscriptions for Placing Shares constitute related party
transactions for the purposes of Rule 13 of the AIM Rules for
Companies.
Accordingly, the directors of Phorm consider, having consulted
with Strand Hanson Limited, that the terms of Viollette and
Meditor's participations in the Placing are fair and reasonable
insofar as the Company's shareholders are concerned.
-Ends-
For further information please contact:
Phorm Corporation Limited
Timothy Smith (Chief Executive Officer) +44 (0)20 3397 6001
Mirabaud Securities LLP (Broker) +44 (0)20 7321 2508
Jason Woollard
Peter Krens
Strand Hanson Limited (Nominated Adviser) +44 (0)20 7409 3494
James Harris
Matthew Chandler
James Dance
About Phorm
Phorm is a leading advertising-technology and first party data
platform provider that enables brands and publishers to address
online users with personalised content and advertising. Phorm's
innovative platform delivers a more interesting online experience
for the user and addressable campaign results for marketers. For
more information, please visit: www.phorm.com
APPENDIX
TERMS AND CONDITIONS OF THE PLACING FOR CONTRACT NOTES
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION
CONTAINED HEREIN, IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE
UNITED STATES, CANADA, AUSTRALIA, JAPAN OR ANY JURISDICTION IN
WHICH THE SAME WOULD BE UNLAWFUL (A "RESTRICTED JURISDICTION"),
SUBJECT TO CERTAIN LIMITED EXCEPTIONS.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO THE
LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE
PLACING SHARES.
Details of the Placing
Mirabaud Securities has today entered into an agreement with
Phorm Corporation Limited (the "Placing Agreement") under which,
subject to the conditions set out in that agreement, Mirabaud
Securities has agreed to use its reasonable endeavours to procure
subscribers for Placing Shares at the Placing Price with certain
institutional and other investors.
The Placing Shares will, when issued, rank pari passu in all
respects with the existing Ordinary Shares, including the right to
receive dividends and other distributions declared, made or paid
following Admission.
Application for admission to trading
Application will be made to the London Stock Exchange for
admission of the Placing Shares to trading on AIM. It is expected
that Admission will become effective and that dealings in the
Placing Shares will commence on AIM at 8.00 a.m. on 10 November
2015.
Participation in, and principal terms of, the Placing
Mirabaud Securities is arranging the Placing as placing agent
for and on behalf of the Company. Mirabaud Securities will
determine in its absolute discretion the extent of each Placee's
participation in the Placing, which will not necessarily be the
same for each Placee.
Each Placee will be required to pay to Mirabaud Securities, on
the Company's behalf, the Placing Price for each Placing Share
agreed to be acquired by it under the Placing in accordance with
the terms set out herein. Each Placee's obligation to acquire and
pay for Placing Shares under the Placing will be owed to Mirabaud
Securities and the Company. Each Placee has an immediate, separate,
irrevocable and binding obligation, owed to Mirabaud Securities, to
pay to it (or as it may direct) in cleared funds an amount equal to
the product of the Placing Price and the number of Placing Shares
such Placee has agreed to subscribe for. Each Placee will be deemed
to have read and understood this Appendix in its entirety, to be
participating in the Placing upon the terms and conditions
contained in this Appendix, and to be providing the
representations, warranties, agreements, acknowledgements and
undertakings, in each case as contained in this Appendix. To the
fullest extent permitted by law and applicable FCA rules (the "FCA
Rules"), neither (i) Mirabaud Securities, (ii) any of its
directors, officers, employees or consultants, nor (iii) to the
extent not contained within (i) or (ii), any person connected with
Mirabaud Securities as defined in the FCA Rules ((i), (ii) and
(iii) being together "affiliates" and individually an "affiliate"),
shall have any liability to Placees or to any person other than the
Company in respect of the Placing.
Conditions of the Placing
The obligations of Mirabaud Securities under the Placing
Agreement are conditional on, amongst other things:
(a) the Company having complied with its obligations under the
Placing Agreement (to the extent that such obligations fall to be
performed prior to Admission); and
(b) Admission having occurred not later than 8.00 a.m. on 10
November 2015 or such later date as the Company and Mirabaud
Securities may agree, but in any event not later than 8.00 a.m. on
17 November 2015.
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If any of the conditions contained in the Placing Agreement in
relation to the Placing Shares are not fulfilled or waived by
Mirabaud Securities, by the respective time or date where
specified, the Placing will not proceed and the Placee's rights and
obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can
be made by the Placee against the Company or Mirabaud Securities in
respect thereof.
Mirabaud Securities may, at its discretion and upon such terms
as it thinks fit, waive compliance by the Company with the whole or
any part of any of the Company's obligations in relation to the
conditions in the Placing Agreement. Any such extension or waiver
will not affect Placees' commitments as set out in this
Announcement.
None of Mirabaud Securities, the Company or any other person
shall have any liability to any Placee (or to any other person
whether acting on behalf of a Placee or otherwise) in respect of
any decision they may make as to whether or not to waive or to
extend the time and/or the date for the satisfaction of any
condition to the Placing nor for any decision they may make as to
the satisfaction of any condition or in respect of the Placing
generally, and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of
Mirabaud Securities and (where applicable) the Company.
Termination of the Placing Agreement
Mirabaud Securities is entitled, at any time before Admission,
to terminate the Placing Agreement in relation to its obligations
in respect of the Placing Shares by giving notice to the Company in
certain limited circumstances. Such circumstances include, inter
alia, material breach by the Company of the terms of the Placing
Agreement or any warranty therein being untrue or incorrect in any
material respect, or on the occurrence of certain specified events
or of certain events of force majeure.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising
before or in relation to such termination) from their respective
obligations under or pursuant to the Placing Agreement subject to
certain exceptions.
By participating in the Placing, Placees agree that the exercise
by Mirabaud Securities of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of Mirabaud Securities and that it need not make any
reference to Placees and that it shall have no liability to Placees
whatsoever in connection with any such exercise or failure so to
exercise.
No prospectus
No offering document, prospectus or admission document has been
or will be submitted to be approved by the FCA in relation to the
Placing and Placees' commitments will be made solely on the basis
of the information contained in this Announcement (including its
Appendix) released by the Company today, and subject to the further
terms set forth in the contract note to be provided to individual
prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees
that the content of this Announcement (including its Appendix) is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information,
representation, warranty or statement made by or on behalf of the
Group, Mirabaud Securities or any other person and none of Mirabaud
Securities nor the Company nor any other person will be liable for
any Placee's decision to participate in the Placing based on any
other information, representation, warranty or statement which the
Placees may have obtained or received. Each Placee acknowledges and
agrees that it has relied on its own investigation of the business,
financial or other position of the Group in accepting a
participation in the Placing. Nothing in this paragraph shall
exclude the liability of any person for fraudulent
misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares through
depositary interests following Admission will take place within the
system administered by Euroclear UK & Ireland Limited
("CREST"), subject to certain exceptions. The Company reserves the
right to require settlement for and delivery of the Placing Shares
(or a portion hereof) to Placees in certificated form if, in
Mirabaud Securities' opinion, delivery or settlement is not
possible or practicable within the CREST system or will not be
consistent with the regulatory requirements in the Placee's
jurisdiction.
Participation in the Placing is only available to persons who
are invited to participate in it by Mirabaud Securities.
A Placee's commitment to acquire a fixed number of Placing
Shares under the Placing will be agreed orally with Mirabaud
Securities. Such agreement will constitute a legally binding
commitment on such Placee's part to acquire that number of Placing
Shares at the Placing Price on the terms and conditions set out or
referred to in this Appendix and subject to the Company's
Memorandum and Articles of Association.
After such agreement is entered into, each Placee allocated
Placing Shares in the Placing will be sent contract notes stating
the number of Placing Shares allocated to it at the Placing Price
and settlement instructions.
Each Placee agrees that it will do all things necessary to
ensure that delivery and payment is completed in accordance with
the standing CREST or certificated settlement instructions that it
has in place with Mirabaud Securities. Settlement should be through
Mirabaud Securities against CREST ID: 834, account designation:
CLEARING. For the avoidance of doubt, Placing allocations will be
booked with a trade date of 6 November 2015 and a settlement date
of 10 November 2015.
The Company will deliver depositary interests in respect of the
Placing Shares to the CREST account operated by Mirabaud Securities
as agent for the Company and Mirabaud Securities will enter its
delivery (DEL) instruction into the CREST system. The input to
CREST by a Placee of a matching or acceptance instruction will then
allow delivery of depositary interests in respect of the relevant
Placing Shares to that Placee against payment.
It is expected that settlement will take place on 10 November
2015, being the date of Admission, on a delivery versus payment
basis.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by Mirabaud Securities.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Company may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for the Company's account and benefit, an amount
equal to the aggregate amount owed by the Placee plus any interest
due. The relevant Placee will, however, remain liable for any
shortfall below the aggregate amount owed by it and may be required
to bear any stamp duty or stamp duty reserve tax (together with any
interest or penalties) which may arise upon the sale of such
Placing Shares on such Placee's behalf.
If depositary interests in respect of Placing Shares are to be
delivered to a custodian or settlement agent, Placees should ensure
that the trade confirmation is copied and delivered immediately to
the relevant person within that organisation. Insofar as Placing
Shares are registered in a Placee's name or that of its nominee or
in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should,
subject as provided below, be so registered free from any liability
to UK stamp duty or stamp duty reserve tax. Placees will not be
entitled to receive any fee or commission in connection with the
Placing.
Representations and warranties
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) acknowledges, undertakes,
represents, warrants and agrees (as the case may be) to the Company
and Mirabaud Securities that it:
1. has read this Announcement, including its Appendix, in its entirety;
2. acknowledges and agrees that no offering document, prospectus
or admission document has been or will be prepared in connection
with the Placing and represents and warrants that it has not
received a prospectus, admission document or other offering
document in connection with the Placing or the Placing Shares;
3. acknowledges that the Ordinary Shares are admitted to trading
on AIM, and the Company is therefore required to publish certain
business and financial information in accordance with the rules and
practices of AIM (collectively, the "Exchange Information"), which
includes a description of the nature of the Company's business and
the Company's most recent balance sheet and profit and loss account
and that it is able to obtain or access such Exchange Information
without undue difficulty and is able to obtain access to such
information or comparable information concerning any other publicly
traded company without undue difficulty;
4. acknowledges that neither Mirabaud Securities nor the Company
nor any of their respective affiliates or any person acting on
behalf of any of them has provided, and will not provide, it with
any material regarding the Placing Shares or the Group other than
this Announcement; nor has it requested any of Mirabaud Securities,
the Company, any of their respective affiliates or any person
acting on behalf of any of them to provide it with any such
information;
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5. acknowledges that (i) it and, if different, the beneficial
owner of the Placing Shares is not, and at the time the Placing
Shares are acquired will not be located in or be residents of a
Restricted Jurisdiction and (ii) the Placing Shares have not been
and will not be registered under the securities legislation of the
United States, Canada, Australia or Japan and, subject to certain
exceptions, may not be offered, sold, taken up, renounced or
delivered or transferred, directly or indirectly, in or into those
jurisdictions or any other jurisdiction where to do so would be
unlawful;
6. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and that neither
Mirabaud Securities nor any person acting on its behalf has or
shall have any liability for any information, representation or
statement contained in this Announcement or any information
previously published by or on behalf of the Company and will not be
liable for any Placee's decision to participate in the Placing
based on any information, representation or statement contained in
this Announcement or otherwise. Each Placee further represents,
warrants and agrees that the only information on which it is
entitled to rely and on which such Placee has relied in committing
itself to subscribe for the Placing Shares is contained in this
Announcement and any information previously published by the
Company by notification to a Regulatory Information Service, such
information being all that it deems necessary to make an investment
decision in respect of the Placing Shares and that it has neither
received nor relied on any other information given or
representations, warranties or statements made by Mirabaud
Securities or the Company and neither Mirabaud Securities nor the
Company will be liable for any Placee's decision to accept an
invitation to participate in the Placing based on any other
information, representation, warranty or statement. Each Placee
further acknowledges and agrees that it has relied on its own
investigation of the business, financial or other position of the
Company in deciding to participate in the Placing;
7. acknowledges that neither Mirabaud Securities nor any person
acting on behalf of it nor any of its affiliates has or shall have
any liability for any publicly available or filed information, or
any representation relating to the Group, provided that nothing in
this paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
8. represents and warrants that neither it, nor the person
specified by it for registration as a holder of Placing Shares is,
or is acting as nominee or agent for, and that the Placing Shares
will not be allotted to, a person who is or may be liable to stamp
duty or stamp duty reserve tax under any of sections 67, 70, 93 and
96 of the Finance Act 1986 (depositary receipts and clearance
services);
9. represents and warrants that it has complied with its
obligations in connection with money laundering and terrorist
financing under the Proceeds of Crime Act 2002, the Terrorism Act
2000, the Terrorism Act 2006 and the Money Laundering Regulations
2007 (the "Regulations") and, if making payment on behalf of a
third party, that satisfactory evidence has been obtained and
recorded by it to verify the identity of the third party as
required by the Regulations;
10. if a financial intermediary, as that term is used in Article
3(2) of EU Directive 2003/71/EC (the "Prospectus Directive")
(including any relevant implementing measure in any member state),
represents and warrants that the Placing Shares subscribed for by
it in the Placing will not be acquired on a non-discretionary basis
on behalf of, nor will they be acquired with a view to their offer
or resale to, persons in a member state of the European Economic
Area which has implemented the Prospectus Directive other than to
qualified investors, or in circumstances in which the prior consent
of Mirabaud Securities has been given to the proposed offer or
resale;
11. represents and warrants that it has not offered or sold and,
prior to the expiry of a period of six months from Admission, will
not offer or sell any Placing Shares to persons in the United
Kingdom, except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or otherwise
in circumstances which have not resulted and which will not result
in an offer to the public in the United Kingdom within the meaning
of section 85(1) of the Financial Services and Markets Act 2000
("FSMA");
12. represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the
European Economic Area prior to Admission except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not
resulted in and which will not result in an offer to the public in
any member state of the European Economic Area within the meaning
of the Prospectus Directive (Directive 2003/71/EC) (including any
relevant implementing measure in any member state);
13. represents and warrants that it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of FSMA) relating to the
Placing Shares in circumstances in which section 21(1) of FSMA does
not require approval of the communication by an authorised
person;
14. represents and warrants that it has complied and will comply
with all applicable provisions of FSMA with respect to anything
done by it in relation to the Placing Shares in, from or otherwise
involving, the United Kingdom and confirms that, to the extent
applicable, it is aware of its obligations in connection with the
Criminal Justice Act 1993;
15. represents and warrants that it is a person falling within
Article 19(5) and/or Article 49(2)(a) to (d) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 or
is a person to whom this Announcement may otherwise be lawfully
communicated;
16. acknowledges that any offer of Placing Shares may only be
directed at persons in member states of the European Economic Area
who are "qualified investors" within the meaning of Article 2(1)(e)
of the Prospectus Directive and represents and agrees that it is
such a qualified investor;
17. understands that the Placing Shares have not been and will
not be registered under the Securities Act, or under the securities
legislation of, or with any securities regulatory authority of, any
state or other jurisdiction of the United States;
18. except as provided in paragraph 19 below, agrees, represents
and warrants that it is not a person located in the United States
and is eligible to participate in an "offshore transaction" as
defined in and in accordance with Regulation S and the Placing
Shares were not offered to it by means of "directed selling
efforts" as defined in Regulation S;
19. where it is a US person as defined in Regulation S, agrees,
represents and warrants that it is an "accredited investor", as
defined in Rule 501(a) under Regulation D, and is acquiring the
Placing Shares either for (i) its own account, (ii) for the account
of one or more "accredited investors" for which it is acting as
duly authorised agent or (iii) a discretionary account or accounts
as to which it has complete investment discretion and the authority
to make, and does make, the statements contained herein;
20. represents and warrants that it is acquiring the Placing
Shares for investment purposes only and not with a view to any
resale, distribution or other disposition of the Placing Shares in
violation of the Securities Act or any other U.S. federal or
applicable state securities laws;
21. understands that the Placing Shares may not be offered,
resold, pledged or otherwise transferred except (a) (i) in an
offshore transaction meeting the requirements of Rule 903 or Rule
904 of Regulation S; (ii) pursuant to an effective registration
statement under the Securities Act; or (iii) pursuant to an
available exemption from the registration requirements of the
Securities Act; and (b) in accordance with all applicable
securities laws of the states of the United States and any other
jurisdictions. Each Placee agrees to, and each subsequent holder is
required to, comply with, and notify any purchaser of the Placing
Shares from it of the resale restrictions referred to in this
Appendix, if then applicable;
22. represents and warrants that it is entitled to subscribe for
Placing Shares under the laws of all relevant jurisdictions which
apply to it, and that its subscription of the Placing Shares will
be in compliance with applicable laws and regulations in the
jurisdiction of its residence, the residence of the Company, or
otherwise and that it has not taken any action or omitted to take
any action which will or may result in Mirabaud Securities, or the
Company or any of their respective affiliates or any person acting
on behalf of any of them acting in breach of the legal or
regulatory requirements of any territory in connection with the
Placing;
23. acknowledges and agrees that its purchase of the Placing
Shares does not trigger, in the jurisdiction in which it is
resident or located: (i) any obligation to prepare or file a
prospectus or similar document or any other report with respect to
such purchase; (ii) any disclosure or reporting obligation of the
Company; (iii) any registration or other obligation on the part of
the Company;
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24. undertakes that it (and any person acting on its behalf)
will make payment for the Placing Shares allocated to it in
accordance with this Announcement on the due time and date set out
herein, failing which the relevant Placing Shares may be placed
with other subscribers or sold as Mirabaud Securities may in its
discretion determine and without liability to such Placee;
25. acknowledges that neither Mirabaud Securities, nor any of
its affiliates, nor any person acting on behalf of it, is making
any recommendations to it, advising it regarding the suitability of
any transactions it may enter into in connection with the Placing
and that participation in the Placing is on the basis that it is
not and will not be a client of Mirabaud Securities for the
purposes of the Placing and that Mirabaud Securities has no duties
or responsibilities to it for providing the protections afforded to
its clients or for providing advice in relation to the Placing nor
in respect of any representations, warranties, undertakings or
indemnities contained in the Placing Agreement nor for the exercise
or performance of any of its rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
26. undertakes that the person whom it specifies for
registration as holder of the Placing Shares will be (i) itself or
(ii) its nominee, as the case may be. Neither Mirabaud Securities
nor the Company will be responsible for any liability to stamp duty
or stamp duty reserve tax resulting from a failure to observe this
requirement;
27. acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions and any non-contractual obligations arising out of or in
connection with such agreements shall be governed by and construed
in accordance with the laws of England and Wales and it submits (on
behalf of itself and on behalf of any person on whose behalf it is
acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter arising out of any such
contract, except that enforcement proceedings in respect of the
obligation to make payment for the Placing Shares (together with
any interest chargeable thereon) may be taken by the Company or
Mirabaud Securities in any jurisdiction in which the relevant
Placee is incorporated or in which any of its securities have a
quotation on a recognised stock exchange;
28. acknowledges that the Company, Mirabaud Securities and their
affiliates will rely upon the truth and accuracy of the
representations, warranties and acknowledgements set forth herein
and which, together with its participation in the Placing, are
irrevocable and are not capable of termination or rescission by it
in any circumstances and it irrevocably authorises the Company and
Mirabaud Securities to produce this Announcement, pursuant to, in
connection with, or as may be required by any applicable law or
regulation, administrative or legal proceeding or official inquiry
with respect to the matters set forth herein;
29. agrees to indemnify and hold the Company, Mirabaud
Securities and their respective affiliates harmless from any and
all costs, claims, liabilities and expenses (including legal fees
and expenses) arising out of or in connection with any breach of
the representations, warranties, acknowledgements, agreements and
undertakings in this Appendix and further agrees that the
provisions of this Appendix shall survive after completion of the
Placing;
30. acknowledges and agrees that time shall be of the essence as
regards obligations pursuant to its commitment to subscribe for
Placing Shares;
31. represents and warrants that it will acquire any Placing
Shares subscribed for by it for its account or for one or more
accounts as to each of which it exercises sole investment
discretion and it has full power to make the acknowledgements,
representations and agreements herein on behalf of each such
account;
32. acknowledges that its commitment to subscribe for Placing
Shares on the terms set out herein and in the relevant contract
notes will continue notwithstanding any amendment that may in
future be made to the terms of the Placing and that Placees will
have no right to be consulted or require that their consent be
obtained with respect to the Company's conduct of the Placing. The
foregoing representations, warranties and confirmations are given
for the benefit of the Company and Mirabaud Securities. The
agreement to settle a Placee's subscription (and/or the
subscription of a person for whom such Placee is contracting as
agent) free of stamp duty and stamp duty reserve tax depends on the
settlement relating only to the subscription by it and/or such
person direct from the Company for the Placing Shares in question.
Such agreement assumes, and is based on a warranty from each
Placee, that neither it, nor the person specified by it for
registration as holder, of Placing Shares is, or is acting as
nominee or agent for, and that the Placing Shares will not be
allotted to, a person who is or may be liable to stamp duty or
stamp duty reserve tax under any of sections 67, 70, 93 and 96 of
the Finance Act 1986 (depositary receipts and clearance services).
If there are any such arrangements, or the settlement relates to
any other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax may be payable. In that event the Placee agrees that it
shall be responsible for such stamp duty or stamp duty reserve tax,
and neither the Company nor Mirabaud Securities shall be
responsible for such stamp duty or stamp duty reserve tax. If this
is the case, each Placee should seek its own advice and notify
Mirabaud Securities accordingly;
33. understands that no action has been or will be taken by any
of the Company or Mirabaud Securities or any person acting on
behalf of the Company or Mirabaud Securities that would, or is
intended to, permit a public offer of the Placing Shares in any
country or jurisdiction where any such action for that purpose is
required;
34. in making any decision to subscribe for the Placing Shares,
confirms that it has knowledge and experience in financial,
business and international investment matters as is required to
evaluate the merits and risks of subscribing for the Placing
Shares. It further confirms that it is experienced in investing in
securities of this nature in this sector and is aware that it may
be required to bear, and is able to bear, the economic risk of, and
is able to sustain a complete loss in connection with, the Placing.
It further confirms that it relied on its own examination and due
diligence of the Company and its associates taken as a whole, and
the terms of the Placing, including the merits and risks
involved;
35. represents and warrants that it has (a) made its own
assessment and satisfied itself concerning legal, regulatory, tax,
business and financial considerations in connection herewith to the
extent it deems necessary; (b) had access to review publicly
available information concerning the Group that it considers
necessary or appropriate and sufficient in making an investment
decision; (c) reviewed such information as it believes is necessary
or appropriate in connection with its subscription of the Placing
Shares; and (d) made its investment decision based upon its own
judgment, due diligence and analysis and not upon any view
expressed or information provided by or on behalf of the Company or
Mirabaud Securities;
36. understands and agrees that it may not rely on any
investigation that Mirabaud Securities or any person acting on its
behalf may or may not have conducted with respect to the Company,
its Group, or the Placing and that the Company and Mirabaud
Securities have not made any representations to it, express or
implied, with respect to the merits of the Placing, the
subscription for the Placing Shares, or as to the condition,
financial or otherwise, of the Company, its Group, or as to any
other matter relating thereto, and nothing herein shall be
construed as a recommendation to it to subscribe for the Placing
Shares. It acknowledges and agrees that no information has been
prepared by Mirabaud Securities or the Company for the purposes of
this Placing; and
37. accordingly it acknowledges and agrees that it will not hold
Mirabaud Securities or any of its affiliates or any person acting
on its behalf responsible or liable for any misstatements in or
omission from any publicly available information relating to the
Group or information made available (whether in written or oral
form) as part of roadshow discussions with investors relating to
the Group (the "Information") and that neither Mirabaud Securities
nor any person acting on behalf of Mirabaud Securities, makes any
representation or warranty, express or implied, as to the truth,
accuracy or completeness of such Information or accepts any
responsibility for any of such Information.
In addition, Placees should note that they will be liable for
any stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any
interest, fines or penalties relating thereto) payable outside the
United Kingdom by them or any other person on the subscription by
them of any Placing Shares or the agreement by them to subscribe
for any Placing Shares.
Each Placee and any person acting on behalf of each Placee
acknowledges and agrees that Mirabaud Securities or any of its
affiliates may, at its absolute discretion, agree to become a
Placee in respect of some or all of the Placing Shares.
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